DÉCISION DU CONSEIL PRIVK

for judgment or a new trial, the f miction of the court under the Civil Procédure Code is the same as the function of the Court of Appeal in this country in similar circumstances. It is not the province of the court to retry the question. The court is not a court of review for that purpose. The verdict must stand if it was one which the jur}', as reasonable men having regard to the évidence before them. might hâve found. even though a dififerent resuit would hâve been more satisfactory in the opinion of the trial judge and the Court of Appeal. That there was évidence to justify the verdict in the présent case could hardly be deputed. The automatic machine which had been in use for rather over a year was designed in the Works of the company. The designer himself, who was the company's superintendent, and apparently a clever and skilful mechanic, and the man who made the machine under his instructions and direction spoke of it in terms of the highest praise. But no indépendant expert was called to écho their encomium or confîrm their view of its suitability for the purpose in hand. It was not patented. but still it did not seem to hâve been adopted in any other Works of the sort. In the judgment of the majority of the judges of the Suprême Court, delivered by Mr. Justice Girouard, it was stated thatit was " proved that the machine was perfect and worked regularly and properly." But the company's witnesses did not go so far as that. They admitted that there was room for improvement, and that improvements were to be introduced in a machine that was then being constructed to take its place. The principal fault or defect of the machine seemed to hâve been in the mechanism used in the last stage of the process. When cartridges were charged they had to be " crimped." that was, the edges had to be turned down so as to hold the charge firmly in its place. The design was that each cartridge, when and as its was loaded. should be clutched by automatic fîngers and carried off to another part of the machine, and there presented, sitting upright on the inside edge of a hollowed cup, to receive the blow or punch which would complète the opération. But those automatic fîngers, occasionally at any rate, acted in an uncertain. not to sav an erratic, manner. Up to the time of the explosion, though no doubt less frequently at the last than at fîrst. cartridges were now and then presented in a wrong pos-

In 7 6 Me ARTHUR VS DOMIXIOX CARTRIDGE CO. 209

ture, and the blow or punch fell sometimes on the side of the cartrid^e and sometimes on the métal end in which the " primer " or percussion cap had been inserted. The évidence was that a considérable number of those failures occurred from time to time, and that the injured cartridges were collected and sent away to be '" scrapped/' or broken up. It seemed to be not an unreasonable inference from the facts proved that in one of those blows that failed a percussion cap was ignited and so caused the explosion. There was no other reasonable explanation of the mishap when once it was established to the satisfaction of the jury that the in jury was not owing to any négligence or carelessness on the part ôf the operator. The wonder really was, not that the explosion happened as and when it did, but that things went on so long without an explosion. Then. too. the jury might hâve reasonably thought that the explosion would or might hâve been comparatively harmless if the powder box on the outside had been properly constructed. The learned judges in the Suprême Court appeared to hâve been much influenced by some décisions in France, which were stated by Mr. Justice Girouard to be " unanimous in exacting proof of a fault which certainly caused the injury." The learned judge had previously observed that " as to the cause of this explosion. . . we are left entirely in the dark.'* As récent French décisions, though entitled to the highest respect, and valuable as illustrations, were not of binding authority in Québec, the learned counsel at the Bar very properly abstained from examining in détail the cases referred to by Mr. Justice Girouard. It was enough to say that although the proposition for which they were cited might be reasonable in the circumstances of a particular case, it could hardly be applicable when the accident causing the injury was the work of a moment, and the eye was incapable of detecting its origin or foUowing its course. It could not be of universal application, or utter destruction would carry with it complète immunity — for the employer. Their Lordships would humbly advise His Majesty that the appeal ought to be allowed, the judgment of the Suprême Court reversed with costs. and the judgment of the Court of King's Bench restored. The respondents would pay the costs of the appeal as in pauper appeals.

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